Defining a de facto relationship under the law

In the contemporary world, being in a relationship does not necessarily lead to marriage. Instead, a couple can become de facto under the law. What defines a de facto relationship?

Family law recognises de facto relationships

Under the Family Law Act 1975, persons living in a genuine domestic relationship, who are not married or related by birth, are considered to be in a de facto relationship.

In 2009, the Australian government made amendments to the Act that gave de facto couples nearly the same rights as those who are married, while also recognising the legality of same-sex de facto couples.

However, proving a de facto relationship exists is not always easy and as such the Act outlines a number of factors that contribute to a determination of a de facto relationship. Some of these include:

length of the relationship

form of residence

whether or not it is a sexual relationship

shared property ownership

care and support of children

Proving the existence of a de facto relationship

There is a wide range of legal situations where the parties need to prove the existence of a de facto relationship. For example, it may be crucial in some estate disputes or family law matters relating to property settlements.

The Family Law Act does not place any special emphasis on any single factor listed in the legislation for determining whether a de facto relationship really exists. To establish the existence of a de facto relationship, the Court will consider all aspects of the relationship, through assessing a combination of factors set out in the Act as outlined above. This assessment will be different in different scenarios and the Court's determination will depend on specific facts of each case.

While guided by the factors set out in the Act, the Court has a discretion as to what weight to give to each of the factors in each particular situation. For example, in some cases the Court may find that a de facto relationship exists in a situation where a couple stay only a few nights under the same roof or spend periods of time away from each other interstate or overseas, if other aspects of a genuine domestic relationship are present.

If you are involved in a dispute relating to the existence of a de facto relationship, you would benefit from an advice of an experienced family lawyer.